Case Analysis Of Vikash Kumar Vs Union Public Service Commission & Ors
Author: LawSphereX
Category: General Law
Published:
Updated:
CASE
ANALYSIS
OF VIKASH KUMAR VS UNION PUBLIC SERVICE COMMISSION & ORS.
B. Dhanavel, B.A. LL.B., LL.M (Taxation Laws), Government Law College - Coimbatore, Affiliated with Tamil Nadu Dr. Ambedkar Law University, Tamil Nadu.
1. CASE DETAILS;
Case Title Vikash Kumar vs Union Public Service Commission & Ors. Case No Civil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021. Judgement Date February 11, 2021 Court The Hon’ble Supreme Court of India Quorum / Constitution of Bench
3 Judges Bench (Division Bench)
Name of Judges Justice Sanjiv Khanna, Justice Indira Banerjee, Justice Dhananjaya Y Chandrachud. Author of Judgement Justice D Y Chandrachud. Citations [2021] 12 S.C.R. 311, AIR SUPREME COURT 2447, AIRONLINE 2021 SC 56 3.
KEYWORDS – Persons with Disability, Right to Equality, Right to Life and Personal Liberty, Right to Reasonable Accommodation, RPwD Act, MSJE and UPSC.
4 BACKGROUND
OF THE CASE;
FACTUAL
BACKGROUND
OF THE CASE - Vikash Kumar is an aspirant of the Union Public Service Commission (UPSC) who is suffering from a disability in the form of dysgraphia, commonly known as a writer’s cramp. He wished to avail the scribe facility in the Civil Services Examination (CSE) 2018. The CSE 2018 Notification was issued by the UPSC and CSE Rules 2018 was issued by the Department of Personnel and Training (DoPT). As per the CSE Notification 2018, A scribe facility and ‘compensatory time’ of 20 minutes per hour shall be provided to candidates with blindness, candidates suffering from locomotor disability, and candidates suffering from cerebral palsy whose writing ability was affected by the disability. Further, their impairment should not be less than 40%. Other than those candidates, should write the test in their hand. He applied for CSE 2018 through an online application.
He declared himself as a person with a benchmark disability of 40% or more to avail the facility of the scribe. Further, he requested UPSC to provide a scribe facility to him through an email dated 28 February 2018. But his request was rejected by its letter dated 15 March 2018, on the grounds he did not fulfil the criterion of the rules of CSE 2018 for availing scribe. Because the appellant Vikash Kumar does not suffer from blindness or locomotor disability or cerebral palsy with 40% or more impairment.
PROCEDURAL
BACKGROUND
OF THE CASE - The appellate approached the Tribunal for availing the facility of a scribe in CSE 2018 against the denial of the scribe service by the UPSC. The tribunal ordered UPSC to provide a scribe facility to him through its interim order dated 30 May 2018. After the completion of the preliminary examination, the results were published on 14 July 2018 but the result of the appellate was withheld. The tribunal dismissed the application of the appellant by its judgment dated 7 August 2018. On the ground, the scribe facility could not be given to the appellant as a disabled candidate because of the absence of a valid disability certificate.
The disability certificate of the National Institute of Mental Health and Neuro Sciences which is provided by the appellant failed to mention the extent of the disability and the medical board of Ram Manohar Lohia Hospital was refused to provide disability certificate. The tribunal agreed to the contention of UPSC that the candidate did not fulfill the criteria of the CSE 2018 rules for availing the scribe service. Further, it noted that the prayer of the appellant to direct the UPSC to amend the CSE Notification 2018 was the policy matter of the executive. So, it cannot be interfered with policy matters. The appellant challenged the legality of the CSE Rules 2018 through a writ petition before the High Court of Delhi. It declined to interfere with the order of the tribunal and held the appellant had not qualified at the Preliminary Examination for CSE 2018.
Further, the prayer of amending CSE Rules 2018 to provide scribe facilities to candidates with specific disabilities did not legally stand. Hence the writ petition was dismissed. Afterward, the appellant approached the Hon’ble Supreme Court to set aside the judgment of the High Court of Delhi, in order to amend the existing CSE rules 2018 and order to allow the appellant to avail the benefit of the scribe as a disabled candidate.
5. ARGUMENTS;
ARGUMENTS OF THE APPELLANT; Behalf of the appellant's learned counsel Mr. Rajan Mani appeared and submitted as follows,
1. Medical certificates submitted by the appellant which are issued by the National Institute
of Mental Health and Neuro Sciences dated 21 March 2015 and 27 August 2018 exhibit he is suffering from Writer’s Cramp and would require scribe service in written examinations. Further, those certificates prove that he is a person with a disability as per section 2(s) of the Rights of Persons with Disabilities (RPwD) Act, 2016. Further, Writer’s Cramp is a specific disability specified as a learning disability by the Ministry of Social Justice and Empowerment (MSJE) through its notification dated 14 January 2018.
2. Restricting him from accessing a scribe for a written examination as the disabled candidate
is against the right of reasonable accommodations which is assured under section 20 of the RPwD Act, 2016. So, the CSE Rules 2018 and the CSE Notification 2018 are violating Sec
20 of the said act.
3. As per the conditions prescribed by the CSE Rules 2018 and the CSE Notification 2018,
the scribe facility is only available to candidates who have blindness, locomotor disability, or cerebral palsy with 40% or more impairment. Neglected the need of the candidates suffering from writer’s cramp to access scribe. It is only limited to some prescribed category disabled candidates but the age relaxation is provided to all category disabled candidates. That limitation imposed against the appellant was held to be a violation of Articles 14 and
16 (1) of the Constitution.
4. “Persons with a disability” and “Persons with benchmark disability” are distinctions made
by the RPwD Act, 2016. The term persons with disability is more inclusive than the persons with benchmark disability regarding some special provisions. But, sec 20 of the Act. It enables any person with a disability entitled to reasonable accommodation such as a scribe. Therefore, the appellant is entitled to access the scribe.
5. The assessment of the extent of disability of the appellant by the All India Institute of
Medical Sciences by the direction of this Hon’ble Court. Which is 6%. Only denotes his disability not provide anything about his writing weakness. Further, it supports other medical certificates submitted by the appellant in support of his disability. ARGUMENTS OF THE UPSC; Learned counsel Mr. Naresh Kaushik appeared on behalf of the UPSC and submitted as follows,
1. As per CSE Rules 2018, candidates with benchmark disabilities can avail of the service
of scribe by production of a medical certificate which is issued by the Chief Medical Officer of a Government Healthcare Institution. This should establish the candidate has physical limitations to write the examination by himself.
2. The appellant voluntarily gave a false declaration in this online application of CSE 2018
as belonging to the candidate with benchmark disability without a valid medical certificate.
3. Further, the candidate only made a claim for reasonable accommodation under section
20 of the RPwD Act, 2016 without challenging the legality of the CSE Rules 2018.
ARGUMENTS OF THE UNION OF INDIA;
The Learned Additional Solicitor General Ms. Madhavi Divan appeared on behalf of the Union of India and submitted as follows,
1. Being the notal ministry to enforce the RPwD Act, 2016. It issued comprehensive
guidelines dated 26 February 2013 which were revised on 29 August 2018 on the conduct of written examinations for persons with disabilities, the facility the scribe provides to the candidates affected with blindness, locomotor disability, and cerebral palsy; and other persons with benchmark disability on the production of the medical certificate which establish the candidate has the physical limitation to write.
2. Writer’s Cramp is not specified in the list of specified disabilities in the schedule of the
RPwD Act, 2016. The revised guidelines do not apply to the appellant. Many medical conditions have writing impairment but are not specified as disabilities. But for the benefit of candidates, the examination body can consider the impairments of candidates to provide the facility of scribe and compensatory time.
3. Inclusiveness of persons with disability in society carries on in various aspects of their
lives like providing separate seats in public transport and so on. But providing facilities in respect of competitive examination were government by specific rules and regulations. UPSC is an extremely competitive examination. Where providing scribe facilities to candidates other than candidates with benchmark disability will corrupt the purity of the examinations.
4. Hence, the appellant is only entitled to a fresh medical examination to determine
whether his disability causes him to write exams difficult by hand and whether he is eligible to avail scribe.
6. ISSUES RAISED;
1. Whether the scribe facility available to persons with disabilities under the Rights of
Persons with Disabilities Act, 2016 (RPwD Act 2016)?
2. Whether Persons with disabilities claim a scribe facility as a matter of right under the
principle of reasonable accommodation under the RPwD Act, 2016?
3. Whether the policies of the government exclude any particular category of disability
from the access of scribe?
7. JUDGEMENT;
The apex ruled that the appellant has the constitutional and statutory right to access the scribe facility in the Civil Services Examination and in any other competitive selection conducted under the authority of the government. Because his medical condition was established the appellant suffered in writing and required a scribe for writing. It is termed as a chronic neurological condition that forms part of Entry IV of the Schedule to the RPwD Act 2016. Hence, the court allowed the appeal and set aside the impugned judgment and order of the High Court of Delhi dated 25 September 2018.
8. GUIDELINES OF THE COURT;
Hon’ble Supreme Court issued directions to the union government to ensure full and effective inclusivity of persons with disability in society. Such as follows,
1. The Union Government through the Ministry of Social Justice and Empowerment
should frame policies and guidelines to provide scribe facilities to persons with disability in examinations where such persons have difficulty writing because of their disableness.
2. Such policies and guidelines should ensure that accessibility is only available to
genuine candidates by making appropriate norms for duly certification by competent medical authority of the medical conditions of the person with a disability. 3. While framing policies and guidelines, the union government should adopt a case-bycase approach to provide reasonable accommodation. Any financial cost is only bearable by the Union government from the overall assets of the concerned organization to provide such accommodations to the person with a disability. Also, no expenses shall vest to persons with disability.
4. The Union Government should consult with the general public specifically with persons
with disabilities and organizations representing them to find their actual needs and bring meaningful change in the realization of their rights.
9. CASE CRITIQUE;
The ruling of the present case is highly significant in the rights of people with disabilities. This pronounced judgment explained the various struggles and difficulties of the disabled community which they faced day by day in the normal course of their life and it reminded the responsibilities of the state towards their development and inclusivity in the society. Therefore, the evaluation of the case needs to look into the constitutional and statutory rights of persons with disabilities and the role of appropriate governments and local authorities in their treatment. Evaluation of the present case is as follows, In the Indian Constitution Part III, there is no mention of any special rights for persons with disabilities and there is no mention of the word ‘Disabilities’ in it. There are no words of disability and no associated words of it.
But the words of any citizen and person include the person with disabilities. So, all fundamental rights are available to persons with disabilities. Especially considering the aspect of equality, whether the state discriminates against persons with disabilities based on their disabilities. Not. The state cannot discriminate any citizens based on their disabilities. It is well settled by the apex court in the case of Navtej Singh Johar & Ors. v. Union of India1. Therefore, the person with disabilities has the right to be treated equally by the state without any discrimination. The apex court in this present case, took the same stand which the state shall not discriminate the person with disabilities based on their disability. This right extends to all aspects of their life.
It enables persons with disabilities to have the right to get an education, the right to participate in society, the right to contribute to society as well as family, the right to inclusiveness in society, and so on. It imposes the duty to the state to ensure the participation of persons with disabilities in society in an equal manner compared with other citizens. For this purpose, the Parliament enacted the act called the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. However, it did not effectively provide effective inclusivity and development to the persons with disabilities. Later, this act was replaced with the Rights of Persons with Disabilities (RPwD) Act, 2016. It acts as the welfare legislation for persons with disabilities effectively compared with the replaced act.
1 AIR 2018 SUPREME COURT 4321.
The RPwD Act, 2016 imposed the duty to the appropriate government to ensure their right to equality, life with dignity and respect for their integrity, no discrimination based on disability, personal liberty without depriving on the grounds of disability, and access to reasonable accommodations under section 3. Provisions regarding discrimination already existed in the PWD Act 1995. But the present RPwD Act, 2016 associates the discrimination with right to equality. Several duties of appropriate government under sec 3 are derived from the provisions of Articles 14 and 21. Reasonable accommodation was a new principle introduced by the RPwD Act, of 2016. The apex court found that the utilization of the rights under the constitution by persons with disabilities is not effective without reasonable accommodation.
It emanates from the aim of that act the equal participation and inclusion of persons with disabilities in society. Further, it held that construction of the provisions of the RPwD Act. 2016 based on that aim. It referred to various provisions of the said act and held that the said act classified the person who suffers from disability into three category such as persons with disability, persons with benchmark disability, and persons with disability having high support needs under section 2(r), (s) and (t). making these classifications is not discrimination among persons who suffer from a disability. It is for their welfare. Some special rights are only available to persons with benchmark disability and persons with disability having high support needs. Such rights are not available to persons with disability.
Because they required more special treatment from the state than them due to their disablement. The apex court identified some provisions that are only available to a certain class of disabilities based on the text of the said act such provisions are Chapter VI of the said act which section
31 to 37 only available to persons with benchmark disability and Chapter VII of the said act
which section 38 only available to persons with disability having high support needs. But it held that the right of reasonable accommodation available to all the categories of persons with disabilities under section 3(5) of the said act. The term ‘reasonable accommodation’ is defined under section 2(y) as, “necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others”. The principle of reasonable accommodation ensures the inclusiveness of persons with disabilities in education, employment, and other aspects of their social and personal life them.
It held that the special support provided to the persons with disabilities can empower them to overcome the disadvantageous which is caused by their disabilities and make them participate in society equally. The apex court held that the reasonable accommodation is not only a legal principle or concept but it is also a right of every person with disabilities. They can compel the state to provide their required accommodation for their equal participation in society. Further, it held that the accommodations are reasonable and only decidable based on the needs of the persons with disabilities. So, it can be a case-by-case approach. By citing the case of the Syed Bashir-uddin Qadri v. Nazir Ahmed Shah2. In this case, providing access to an external electronic aid to a cerebral palsy person for overcome the inability to write in white board considered a reasonable accommodation.
The apex court followed this type of approach in various cases. Some of the examples are Jeeja Ghosh & Another v. Union of India & Ors3, the court held that providing the facility for persons with disability to travel is a reasonable accommodation. Rajive Raturi v. Union of India & Ors4 which the court held making public infrastructure accessible to people with disabilities is a reasonable accommodation. National Association of the Deaf v. Union of India & Ors5 in which the court held that providing sign language interpreters, captioning, or other aids considered reasonable accommodation. The apex court not only follows this caseby-case approach but it also compels the executive to follow this approach while dealing with persons with disabilities.
In all those cases, the absence of reasonable accommodation led to discrimination against persons with disabilities under section 2(h) of said act and the violation of their fundamental rights. The same stand taken by the apex court in the present case, when the state fails to provide reasonable accommodation to the persons with disabilities is considered as a violation of the fundamental rights and discrimination against them. It further held the scribe facility is a reasonable accommodation under sections 16 and 17 of the RPwD Act, 2016 available to all categories of persons with disabilities. So, the responsibility vests with the government. Further, the appropriate governments should conduct awareness programmes for the welfare of the persons with disabilities. It’s a duty to them under section
39 of the RPwD Act, 2016.
2 Supra note at 28.
3 AIR 2016 SUPREME COURT 2393.
4 AIRONLINE 2018 SC 544.
5 W.P.(C) No.6250/2010 of HIGH COURT OF DELHI.
Here, the apex court made it clear that the scribe facility is available to all the categories of persons with disability. One of the key aspects of the above statement also addressed by the apex court in the present case is who the persons come under the term persons with disability. Because the term ‘persons with benchmark disability’ is clearly defined under sec 2(r) of the RPwD Act, 2016. 21 disabilities are specified under the schedule of the said act as “specified disabilities” and it can increased by the Central Government by exercising the power provided under section 56 and 57. So, the term ‘person with benchmark disability’ is specified clearly but the term “person with disabilities” under the act is not limited to specific categories. But in previous act which is PWD, Act 1995 in Section 2(i) and (t) the term of ‘disability’ is itself very limited.
Seven kinds of disabilities only were recognized in it. The term ‘persons with disabilities’ is defined under section 2(s) as, “a person with long-term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others”. Based on the definition there are three conditions to consider the specific medical condition as disability under RPwD Act,
2016. The first condition under sec 2(s) is there should be any physical, mental, intellectual, or
sensory impairment resulting from a medical condition. The second condition is such impairment should be in the long term and the third condition is such impairment should cause barriers to the affected person for full and effective participation in society equally with others. The term ‘barrier’ is defined under Sec 2(c) as, “any factor including communicational, cultural, economic, environmental, institutional, political, social, attitudinal or structural factors which hampers the full and effective participation of persons with disabilities in society”. The apex court found that this provision is wide enough to cover all kinds of medical conditions as disability. Therefore, the rights available under the said act as persons with disabilities applicable to such wide categories of persons.
The apex court ruled that the scribe facility is available to all categories of persons with disability who face difficulty in writing. It allowed the appellant who is suffering from writer’s cramp which is a “chronic neurological condition” which is part of Entry IV of the Schedule to the RPwD Act 2016. Further, it noted the policy disconnects with the provisions of the said act. Because the scribe facility available to persons with disabilities is the right of reasonable accommodation. The policies of the Ministry of Social Justice and Empowerment and the Union Public Service Commission are violating the provisions of the RPwD Act, 2016. The policies of those bodies limit the facility of scribe only to persons suffering from blindness, low vision and locomotor disability affected not less than 40%.
This limitation is not valid under the RPwD Act, 2016, and Article 14 of the constitution. Because absence of reasonable accommodation for persons with disabilities is discrimination against such persons by the state which violates the right to equality under Article 14. Further, it violates the provisions of the RPwD Act, 2016. The apex held those policies were invalid because of the violation of those provisions and strongly condemned the failure of the Ministry of Social Justice and Empowerment as the nodal ministry for the implementation of the provisions of the RPwD Act,
2016. Further, the apex court found this kind of neglect happened because of the lack of
consultation while framing policies by the ministry with the persons with disabilities and organizations that represent them. That’s why the apex court directed the ministry to frame a new policy after consultation with them. While framing the policy, the ministry needs to provide reasonable accommodation to any category of persons with disabilities whatever it can be by following a case-by-case approach at the financial cost of the concerned organization not from the person with disabilities in need. The apex court concluded the present case with a keynote that this judgment will be one of the contributors to generating the RPwD generation in India. The court referred to the scenario of America regarding the persons with disabilities under the Americans with Disabilities Act. Where the new generation of disabled Americans proudly identified as ADA generation.
They are identified with the act because it provides huge development in the rights of disabilities. The Supreme Court is confident that the present RPwD Act, 2016 will cause such an effect in the lives of the persons with disabilities in India. That’s why they used the word ‘RPwD generation’. The present case has significance in the rights of persons with disability in various aspects. Here are some of the key rulings of the present case as follows,
1. Reasonable accommodation is the right of every person with disabilities under the
Constitution and RPwD Act, 2016,
2. The state and appropriate governments have the duty to provide reasonable
accommodation to every person with disabilities,
3. The scribe facility is a reasonable accommodation under the RPwD Act, 2016,
4. The failure to provide reasonable accommodation is a discrimination and violation of
the rights of persons with disabilities,
5. The executive should follow the case-by-case approach while determining the
reasonable accommodation,
6. The term ‘disability’ should not be defined based on medical condition alone social
barriers to the impairment are also taken into consideration.
10. CONCLUSION;
No citizens should be subjected to any discrimination in India, which is one of the aims of the constitution of India. Restricting the rightful things to the rightful persons is also considered discrimination. During daily life, persons with disability face many challenges to lead normal lives with others. They have the right to barrier barrier-free environment for their involvement in society. The principle of reasonable accommodation helps them to participate in all social accepts of life. The state has a duty towards it. The state should not discriminate against them based on their impairment and should provide adequate facilities for them to overcome the challenges caused by their impairment. This judgment of the apex court once again reminded the state that when they are blooming and blossoming, society also blooms and blossoms.
The fruits of the RPwD Act, 2016 only be achieved by the welfare approach of the executive towards them.